Fines_Debts_SDRO - National Association of Community Legal

Fines, Debts &
the SDRO
27 NOVEMBER 2013
The information provided in this session is for information
purposes only.
It must not be relied on as legal advice.
You should seek legal advice about your own particular
circumstances.
SDRO Fines
• Disputing Fines
• Options if your clients can’t pay
Private Debt
• Letters of Demand
• Statements of Claim
THE SDRO FINES PROCESS
SDRO Makes and
Enforcement
Order
Always encourage your clients to deal
with fines straight away. Even if they
cannot afford to pay, it is important
that they don’t simply ignore the fine.
The SDRO will take serious
enforcement action to recover
unpaid fines.
C
B
A
Penalty Notice
or Court Fine is
issued
Civil
Enforcement
& Other
Sanctions
A) RESPONDING TO A PENALTY NOTICE
• Pay the fine in full
• Apply to pay by
instalments
• Request a review
• Apply for a WDO
• Court elect
21 days to respond
1. REQUESTING A REVIEW
Possible Outcomes of a Review:
• PENALTY STANDS
Either pay the fine or dispute the
matter in court
• CAUTION
The penalty notice was issued correctly,
but in the circumstances, a fine is
inappropriate. The caution will still be
taken account for any future offences.
• CANCELLATION
No fine is issued, no demerit points are
taken away.
Requests for review can be made:
• Online at www.sdro.nsw.gov.au;
• In writing to SDRO, PO BOX 786
Strawberry Hills NSW 2012; or
• By phone 1300 138 118
1. REQUESTING A REVIEW
James received a penalty notice in the
mail for a speeding fine.
The fine was issued in June while
James was overseas. He had lent his
car to a friend while he was travelling.
James sent a statutory declaration to
the SDRO saying that he was not the
driver. His fine was cancelled.
Tess was pulled over at an RBT and
fined for failing to display her P plates.
Tess’ friends had driven their car to a
party. Her friends had been drinking
and wanted to drive home. Tess didn’t
want them to drive drunk. She drove
them home in their car. They did not
have any P plates.
Tess requested a review. She received a
caution but did not have to pay the fine.
2. WORK AND DEVELOPMENT ORDERS (WDOS)
Work and Development Orders are available to people who:
• Have a mental illness, intellectual disability or cognitive impairment
• Are homeless
• Are experiencing acute economic hardship
• Have serious drug or alcohol addictions
These orders allow people to ‘work off’ their fine debt, by either engaging in
unpaid work OR undergoing treatment, training or mentoring that will benefit
them.
2. WDOS
Applications for a WDO can be
made by filling out a standard
form on the SDRO website.
If the application is approved, the
client can start working off their
fine debt by completing the
activities in the table.
2. WDOS: APPROVED ORGANISATIONS
A WDO can only be made if an application is supported by an “approved
organisation” or a qualified health practitioner.
Does anyone here work for an Approved Organisation?
What kind of work do WDO clients do for your organisation?
What services does your organisation provide to WDO clients?
3. COURT ELECTION
Fines can also be disputed in court.
An application must be made:
• Before the due date on the penalty reminder notice; OR
• Within 28 days of having a request for review denied; AND
• Before the fine has been paid.
This application can be made on the SDRO website or by writing to:
www.sdro.nsw.gov.au/contact; OR
State Debt Recovery Office, PO Box 786, Strawberry Hills NSW 2012
3. COURT ELECTION: THE PROCESS
•The court election
form can be
completed on the
SDRO website.
Court
Election
CAN
•The SDRO will send
a “Court Attendance
Notice” with the
first court date
•The court will ask if
a guilty or not guilty
plea will be entered
1st Court
Date
Not Guilty
Plea
•If a not guilty plea
is entered, the court
will set down a new
date for a hearing.
•Both sides provide
evidence/
witnesses and
make their case.
Hearing
3. COURT: THE OUTCOMES
A. Guilty
•
•
They will be required to pay the fine, demerit points
will apply
Additional costs may also be imposed
B. Non-Conviction
•
•
The court finds that the person is guilty of the offence,
but in the circumstances, it is inappropriate to
proceed to a conviction.
The fine will be waived, but costs might still be
imposed.
C. Not guilty
•
The fine is waived, no demerit points will apply. No
costs are imposed.
B) ENFORCEMENT ORDERS
If a fine is not paid by the due date, the SDRO
will make an Enforcement Order and impose an
additional fee of $65 for adults or $25 for
people under the age of 18.
Enforcement orders give people 28 days to
respond before further action is taken to recover
the debt.
RESPONDING TO ENFORCEMENT ORDERS
Pay the Fine
Dispute the Fine
Apply for a WDO
Postpone Enforcement
Pay in full online, by
phone, BPAY or at a
Post Office.
Apply
for
an
annulment
order
and
have
the
matter decided in
court.
OR
Apply to have the
fine written off.
WDO applications
can be made at any
stage of the fines
process.
Where a person is
in serious financial
difficulty, the SDRO
might
postpone
enforcement action
for up to twelve
months.
OR
Apply to pay by
instalments.
See earlier slides
re: WDOs.
DISPUTING THE FINE: ANNULMENT
Clients who receive an enforcement order can make an ‘annulment application’.
This allows them to dispute the fine in court.
In this application, the client has to:
• Explain why they didn’t respond to the penalty notice
• Explain why they are not guilty
• Provide documentation to support their claims
This application costs $50 unless the client claims financial hardship.
If the application is successful, the client will be given a court date.
DISPUTING THE FINE: ANNULMENT
The SDRO must annul the enforcement order if:
• The client could not address their fine due to
accident, illness or misadventure.
• There is doubt about the client’s guilt or
liability for the fines
• There is other just cause (such as
homelessness, severe financial hardship or
being under 18)
DISPUTING THE FINE: WRITE OFFS
The SDRO has the power to write off all or part
of an unpaid fine debt if they believe:
• That the applicant is unlikely to ever be
able to pay the fine, or comply with a
community service order because of a
serious illness or disability; and
• That continued enforcement action would
be unfair or unjust
C) ENFORCEMENT ACTION BY THE SDRO
RMS
Sanctions
Civil
Enforcement
Community
Service
Orders
Imprisonment
1) RMS SANCTIONS
The SDRO can refer unpaid fines to Roads and Maritime
Services (formerly the RTA). The RTA can then:
• Suspend drivers’ licences without notice or prevent
people from obtaining a new licence
• Cancel the licence and cancel vehicle registration if a
fine is not paid for 6 months
• Impose “customer business restrictions”. This could
include refusing to issue new number plates, or
renew registration.
2) CIVIL ENFORCEMENT
If the fine remains unpaid even after RMS sanctions are imposed, the SDRO can
apply to a local court to make any of the following enforcement orders.
Property Seizure
Order
Garnishee
Order
Charge
on Land
Summons
to appear in court
This allows the
sheriff to seize and
sell certain items of
personal property
to recover the debt.
A certain amount of
the clients income
will go towards
repaying the fine,
each pay period.
The enforced fine
will be registered
as a charge on land
owned
by
the
client.
The client must
appear in court to
be
questioned
about their assets
& income
3) COMMUNITY SERVICE ORDERS
This is a court order that the client perform a certain
amount of community service.
Community service orders are not commonly used. They will
be imposed if RMS sanctions and civil enforcement have
not been successful.
The Probation and Parole Officers from NSW Corrective
Services must assess the client’s suitability for community
service.
4) IMPRISONMENT
If a client fails to comply with a
community service order, the
SDRO could issue a warrant for
the imprisonment of that client.
This is very rare in practice.
ASSISTING YOUR CLIENTS WITH FINE DEBT
• Ask them if they have a fines debt
• Explain that even if they don’t have the
money to pay, there are other options
available
• Make effective referrals to legal and
financial services
• Where appropriate, assist them to make
applications to the SDRO
• Call the SDRO Advocacy Hotline on 1300
135 627
OVERVIEW
This section will focus on private debt. This includes:
• Rental Payments
• Phone Bills
• Mortgage Repayments
• Credit Card Bills
• Personal Loans
• Private Car Park Fines
• Money owed to family and friends
• Medical Fees
• Money owed for goods and services
WHAT IS A LETTER OF DEMAND?
This is a letter from the creditor which says that
court proceedings will be started if a debt is not
paid by a certain date.
STEP ONE: Check that the amount is correct.
STEP TWO: If it is the amount claimed is
incorrect, or unclear, write back to the creditor
and ask for a detailed statement of the money
owed.
RESPONDING TO A LETTER OF DEMAND
Pay in Full
Alternative Dispute Resolution
Refuse to Pay
If informal negotiations do not work, it
can still be possible to settle the
dispute out of Court.
The creditor may start legal proceedings to
recover the debt.
Make an Offer
You can respond to the letter and ask:
• For an extension of time to pay
• To pay off the debt by instalments
• That the debt be reduced due to financial
hardship
• That the debt be written off
• Community Justice Centres
• Consumer, Trader & Tenancy
Tribunal
• Financial Ombudsman Service
• Credit Ombudsman Service
WHAT IS A STATEMENT OF CLAIM?
This is a document issued by the Local Court. It
means the creditor has started legal proceedings
to recover money from you.
If you receive a Statement of Claim, you have 28
days from the date you received it to make a
response to the Local Court.
RESPONDING TO A STATEMENT OF CLAIM
Ignore
the Claim
Part Payment/
Instalments
The Court will
make a ‘Default
Judgment’.
Negotiate an
agreement out
of court.
The judgment
creditor can start
enforcement
action.
You might still
have to pay the
creditors legal
costs.
File a
Defence
File a
Cross-Claim
Voluntary
Bankruptcy
If you say you
don’t owe the
debt you can file
a defence.
If you think that
the creditor also
owes you a debt
you can file a
cross-claim.
Seek advice
from a lawyer or
a financial
counsellor
before filing for
bankruptcy.
ALWAYS SEEK
LEGAL ADVICE
before filing.
CIVIL ENFORCEMENT
We spoke earlier about the SDRO taking
enforcement action in court.
Private companies and individuals can also
go to court seeking orders to have the debt
paid.
They have 12 years from the date of the
judgment to take enforcement action.
Instalment
Orders
Summons
to appear in court
Order to seize &
sell property
Garnishee
Order
Charge
on Land
Bankruptcy
Proceedings
BANKRUPTCY
Bankruptcy is a process where people who
cannot pay their debts give up their assets
and control of their finances, either by
agreement or court order, in exchange for
protection from legal action by their
creditors.
Bankruptcy is a complex technical area of
law. These means that the proceedings tend
to be very slow and very costly.
Organisation
Phone
Website
Hunter Community Legal Centre
(02) 40409120
hunterclc.com.au
Consumer Credit Legal Centre
1300 007 007
cclcnsw.org.au
Australian Securities &
Investments Commission
1300 300 630
asic.gov.au
Court Registries (Newcastle)
1300 679 272
localcourt.lawlink.nsw.gov.au
Community Justice Centres
1800 990 777
cjc.nsw.gov.au
Insurance Law Service
1300 663 464
insurancelaw.org.au
Organisation
Phone
Website
Credit Ombudsman Service
1800 138 422
cosl.com.au
Energy & Water Ombudsman
1800 246 545
ewon.com.au
Financial Ombudsman Service
1300 78 08 08
fos.org.au
Telecommunications Industry
Ombudsman
1800 062 058
tio.com
State Debt Recovery Office
1300 138 118
sdro.nsw.gov.au
ACKNOWLEDGEMENTS
The information in these slides has been drawn from:
•
•
•
•
•
•
•
•
A CLE presentation prepared by Marrickville CLC
Federal Court of Australia Factsheets on Bankruptcy
NSW College of Law Practice Papers on Civil Enforcement Options
Legal Aid NSW factsheet “Are you being squeezed for a debt”
Factsheets from the SDRO Website
SDRO Presentation on “The Fines Process” by Mark Lester
Attorney-General’s Work and Development Order Guidelines 2012
SDRO Review Policy